01976307
08-05-1999
William T. O'Brien, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, (Great Lakes/Midwest Region), Agency.
William T. O'Brien, )
Appellant, )
) Appeal No. 01976307
v. ) Agency Nos. 4-J-600-1005-94
) 4-J-600-1314-94
William J. Henderson, ) 4-J-600-1409-94
Postmaster General, )
United States Postal Service, )
(Great Lakes/Midwest Region), )
Agency. )
)
DECISION
Appellant timely initiated an appeal from a final agency decision ("FAD")
concerning his equal employment opportunity (EEO) complaint of unlawful
retaliation based on prior EEO activity and discrimination based on
sex (male), age (D.O.B. 6/28/38), and physical disability (cancer and
hypertension), in violation of Title VII of the Civil Rights Act of
1964, as amended, 42 U.S.C. �2000e, et seq., the Age Discrimination
in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. �621, et seq.,
and the Rehabilitation Act of 1973, as amended, 29 U.S.C. �791, et seq.
For the following reasons, the appeal is DISMISSED WITHOUT PREJUDICE.
The record reveals that appellant entered duty with the agency on
September 10, 1962, later served as Postmaster of the Bensenville,
Illinois Post Office, and effective on or about March 6, 1993, became
Postmaster of the Skokie, Illinois Post Office. In or about July 1994,
appellant sought leave for medical reasons, and remained absent from work
until his retirement from the Postal Service on or about July 3, 1995.<1>
Believing he was a victim of retaliation and discrimination as referenced
above, appellant had sought EEO counseling on September 22, 1993, prior
to his medical absence and subsequent retirement. When informal efforts
to resolve appellant's allegations through the EEO counseling process
were unsuccessful, appellant filed a consolidated formal complaint on
August 12, 1995, by which time he had retired from the agency.
The complaint alleged that appellant was subjected to retaliation and
discrimination when: (1) commencing in or about August 1993, he was
denied higher-level details; (2) on September 8, 1994, he was scheduled
for a fitness-for-duty examination, and was thereafter required to submit
medical documentation every thirty days and an update every two weeks;
(3) he was non-selected for the position of Operations Support Manager,
vacancy number 94-001; and (4) he was denied a merit award for performance
in fiscal year 1993.<2> In his affidavit executed March 25, 1996 as
part of the EEO investigation, appellant additionally asserted that the
"discrimination and harassment by [the Manager of Post Office Operations]
was for no other reason than to induce my early retirement because of my
prior EEO activity, age, sex, and illness." See Report of Investigation
(ROI) at 23.
At the conclusion of the investigation, the agency advised appellant of
his right to request a hearing before an Administrative Judge (AJ) of
the Equal Employment Opportunity Commission (EEOC), and appellant did so.
The AJ subsequently issued an order identifying the above five issues
as comprising the matter before him. Although appellant objected to
other aspects of the order, he adopted the AJ's statement of issues,
including, as issue (5), that he was forced to retire due to the
retaliatory and discriminatory actions of the Manager of Post Office
Operations. Compare Order entered by AJ on November 13, 1996; with
"Complainant's Response to Administrative Judge's Order of November 13,
1996 at 1 (November 27, 1996). By letter dated December 24, 1996, the AJ
remanded the matter to the agency, on the ground that issue (5) presented
a claim of constructive discharge to which neither party had objected, and
appellant had thus presented a "mixed complaint" appealable to the Merit
Systems Protection Board (MSPB) pursuant to 29 C.F.R. �1614.302. The AJ
instructed the agency to proceed to issue a FAD without a hearing.<3>
On remand, the agency conducted a supplemental investigation with respect
to issue (4), and then issued a FAD finding in favor of the agency on
the merits of all five of appellant's claims. The FAD advised appellant
of his right to appeal to the MSPB, not the EEOC, in accordance with
29 C.F.R. �1614.302(d)(3). Notwithstanding this instruction regarding
appeal rights, appellant, by counsel, lodged his notice of appeal with
this Commission.
On appeal, appellant contends that the AJ erred in deeming his complaint
a mixed case complaint, and therefore erred in remanding the case
for issuance of a FAD without a hearing. Appellant contends that
his allegation that managerial discrimination and retaliation created
intolerable working conditions which resulted in his resignation does
not present a claim of constructive discharge because it is, instead, a
claim of "intolerable working conditions leading to induced retirement."
Appellant's Brief at 2 n.2.
After a careful review of the record, the Commission concludes that the
AJ correctly deemed appellant's allegation regarding his retirement to
present a claim of constructive discharge, thus rendering his complaint
a mixed complaint. Commission precedent establishes that a constructive
discharge claim has three elements: (1) a reasonable person in appellant's
position would have found the working conditions intolerable; (2) conduct
that constituted discrimination against appellant created the intolerable
working conditions; and (3) appellant's involuntary resignation resulted
from the intolerable working conditions. Walch v. Department of
Justice, EEOC Request No. 05940688 (April 13, 1995) (citing Juanita
A Christoph v. Department of the Air Force, EEOC Request No. 05880575
(April 6, 1990)). A complaint states a claim for constructive discharge
under this standard where appellant alleges that intolerable working
conditions resulted in either resignation or, alternatively, retirement.
See, e.g., Yancey v. Department of Health and Human Services, EEOC Appeal
No. 01933958 (November 29, 1993) (allegation that appellant retired due
to stress caused by manager's discrimination stated claim for constructive
discharge), request for reconsideration denied, EEOC Request No. 05940301
(February 9, 1995). Thus, constructive discharge is indistinguishable
from issue (5) as identified by appellant's counsel to the AJ. See
"Complainant's Response to Administrative Judge's Order of November 13,
1996 at 1 (November 27, 1996) ("(5) he was forced to retire because of
the effects of the constant harassment and retaliation by [his manager]").
Therefore, because appellant presented a mixed complaint, the AJ properly
remanded the matter to the agency for issuance of a FAD with appeal rights
to the MSPB, not the EEOC. Accordingly, appellant has improperly noted
his appeal with this Commission, and the appeal is DISMISSED WITHOUT
PREJUDICE.<4>
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in the
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive the
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and be submitted to the Director, Office of
Federal Operations, Equal Employment Opportunity Commission, P.O. Box
19848, Washington, D.C. 20036. In the absence of a legible postmark, the
request to reconsider shall be deemed filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and any supporting documentation must be submitted with your
request for reconsideration. The Commission will consider requests
for reconsideration filed after the deadline only in very limited
circumstances. See 29 C.F.R. �1614.604(c).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that you have the right to file
a civil action in an appropriate United States District Court WITHIN
NINETY (90) CALENDAR DAYS from the date that you receive the decision.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive the decision. To ensure that your civil action is
considered timely, you are advised to file it WITHIN THIRTY (30) CALENDAR
DAYS from the date that you receive the decision or to consult an attorney
concerning the applicable time period in the jurisdiction in which your
action would be filed. If you file a civil action, YOU MUST NAME AS THE
DEFENDANT IN THE COMPLAINT THE PERSON WHO IS THE OFFICIAL AGENCY HEAD
OR DEPARTMENT HEAD, IDENTIFYING THAT PERSON BY HIS OR HER FULL NAME AND
OFFICIAL TITLE. Failure to do so may result in the dismissal of your
case in court. "Agency" or "department" means the national organization,
and not the local office, facility or department in which you work. If you
file a request to reconsider and also file a civil action, filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1092)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request that the Court appoint
an attorney to represent you and that the Court permit you to file the
action without payment of fees, costs, or other security. See Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. �2000e, et seq.;
the Rehabilitation Act of 1973, as amended, 29 U.S.C. ��791, 794(c).
The grant or denial of the request is within the sole discretion of
the Court. Filing a request for an attorney does not extend your time
in which to file a civil action. Both the request and the civil
action must be
filed within the time limits as stated in the paragraph above ("Right
to File A Civil Action").
FOR THE COMMISSION:
August 5, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
1Appellant was charged as being Absent Without Leave (AWOL) from September
18, 1994 through the date of his retirement. ROI at Affidavit A and
Exhibit 12.
2Issues 3 and 4 were not included in the agency's notice of issues
accepted for investigation, but were added following appellant's
objection.
3The AJ noted that because appellant was a management employee of the
Postal Service not entitled to participate in collective bargaining,
he possesses MSPB appeal rights. See 39 U.S.C. �1005(a)(4)(A)(ii).
4The Civil Service Reform Act, 5 U.S.C. �7702(f), provides that in any
case in which an employee files an appeal in a timely fashion but with
an agency other than the agency with which the appeal is supposed to
be filed, the employee shall be treated as having timely filed the
appeal as of the date it is filed with the proper agency. Pursuant
to 29 C.F.R. �1614.303, et seq., once appellant receives a final
decision from the MSPB, he may file a petition with this Commission to
consider issues of prohibited discrimination that the MSPB considered
in reaching its decision. If the MSPB issues a final decision that it
lacks jurisdiction over any portion, or all, of the present complaint,
the Agency must return the portion, or all, of the consolidated complaint
to the EEOC for a hearing before an AJ.